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High Court of Judicature at Madras
VINOD K. SHARMA
Dr. I. Veeramani
Versus
The Director of Medical & Rural Health Services (General), Chennai & Another
W.P.No.27057 of 2005
Decided on : 09-07-2012
Disciplinary Rules - Promotion - Delay in Promotion - Absence from Duty - Writ of Mandamus
Fact of the Case:
The petitioner was absent from duty for an extended period due to his son's illness and was subsequently found guilty of misconduct, resulting in a delay in his promotion. The petitioner sought a writ of mandamus to be promoted to the post of Senior Civil Surgeon.
Finding of the Court:
The court dismissed the writ petition, citing the petitioner's delay in filing the petition and failure to challenge the promotion of juniors in a timely manner.
Issues: Delay in promotion, absence from duty, challenge to promotion of juniors
Ratio Decidendi: The court found that the petitioner's delay in filing the petition and failure to challenge the promotion of juniors in a timely manner were grounds for dismissing the petition.
Final Decision: The court dismissed the writ petition, stating that the petitioner was not entitled to any relief due to the absence of challenge to the promotion of juniors and the delay in filing the petition.
1. The petitioner joined the service in pursuance to the selection by the Tamil Nadu Public Service Commission on 10.09.1981.
2. The petitioner applied for leave from 09.08.1991 to 13.07.1993 for treatment of his son suffering from chronic hepatic Coma.
3. The petitioner was served with charge memo under 17(b) of Tamil Nadu Civil Services (Disciplinary & Appeal) Rules on 15.07.1997. The enquiry officer was appointed to hold the enquiry, regarding to misconduct of the petitioner for absent from duty from 09.08.1991 to 13.07.1993; i.e. 23 months and 4 days.
4. The enquiry officer held the petitioner guilty of the charge. The petitioner was awarded major punishment of stoppage of two increments with cumulative effect vide order dated 23.11.1998. Thereafter, vide order dated 8.10.1999, the service of the petitioner was regularised, by treating the period of absence from 09.08.1991 to 13.7.1993 as extraordinary leave, without pay.
5. It is submission of the petitioner that punishment was not affect his right of further promotion, based on the seniority, therefore, petitioner requested the respondents, to include the name of the petitioner in the promotion panel.
6. It was in response to the representation filed by the petitioner that he was informed that punishment awarded to the petitioner will be completed on 23.11.2000, therefore, he will be eligible for promotion as Civil Surgeon, only in the panel year 2001-2002.
7. It is not disputed that the petitioner was promoted as Civil Surgeon by including his name for the panel year 2001-2002.
8. The petitioner thereafter, filed representation, for being promoted to the post of Senior Civil Surgeon. The case of the petitioner is that though the petitioner was eligible for being promoted, but his name was not included in the panel for the year 2001-2002 and for the panel year 2003-2004, whereas the juniors to the petitioner were promoted.
9. It is submission of the petitioner that promotion to the post of Senior Civil Surgeon, based on seniority alone and not by selection, therefore, the petitioner could not be ignored for promotion in the panel year 2001-2002. The representations filed by the petitioner were not answered.
10. It is also the submission of the petitioner that promotion for the panel year 20012002 was made on 13.12.2001, when the petitioner was eligible for promotion even as per the stand of the respondents.
11. The petitioner has invoked the jurisdiction of this Court, praying for issuance of a writ in the nature of mandamus, directing the first respondent to promote the petitioner to the post of Senior Civil Surgeon w.e.f. 13.12.2001 i.e. when the junior to the petitioner were promoted.
12. The writ petition was filed in the year 2005, on the face of it, suffers from delay and latches, as no explanation is forthcoming for the delay, except that the petitioner has been making repeated representation. The representations being not statutory, cannot be a ground to condone the delay.
13. Not only that the writ suffers from delay and latches, for the reason best known to the petitioner, he has chosen not to implead the persons junior to the petitioner who are said to have been promoted, while denying promotion to the petitioner.
14. In the counter, the stand taken is that though promotion to the post of Senior Civil Surgeon was made in the year 2001, but it was for panel year 1998-99, 1999-2000 and 2000-2001, i.e. the panel years when the petitioner was not eligible for promotion because of pendency of punishment. The petitioner has not placed any order of promotion of junior to the petitioner, who may have been subsequently promoted, while ignoring the case of the petitioner in subsequent years.
15. Consequently, in absence of challenge to the promotion of the juniors, the petitioner is not entitled to any relief. The petitioner also cannot be permitted to implead the juniors at this stage to challenge their promotion after a lapse of 11 years of prom
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